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The media often looks to Nolan Law Group for insights into important legal issues. Considered by many journalists to be an authoritative resource for accurate information, our attorneys and experts are frequently interviewed by newspapers and magazines, as well as many television news programs. Thomas P. Routh was recently interviewed on NBC Nightly News by Tom Costello regarding Malaysia Airlines Flight MH 17 on Friday July 18, 2014.

Nothing can be more dangerously arrogant than an airline publicly declaring a fatal accident involving one of its planes is inconceivable. Yet an article in an AirAsia in-flight magazine that went to press before the disappearance of Malaysian Airlines Flight MH370 in March 2014 boasted that AirAsia pilots would never lose an airplane because of their “continuous and very thorough” training”.

“Rest assured that your captain is well prepared to ensure your plane will never get lost,” the article declared.

Now AirAsia Flight QZ8501 is missing, presumed at the bottom of the Java Sea. Ground radar contact was lost with the Airbus A320 with 162 aboard early on the morning of December 28. The airplane was about a third along its flight from Surabaya, Indonesia, to Singapore. The airplane was lost right at a line of severe thunderstorms. The cockpit crew apparently did not have time to radio a distress call; whatever happened, it was quick. Three days later, Indonesian rescuers were pulling bodies and wreckage from the sea.

The lost airplane

The in-flight magazine was pulled in April 2014 — a month after the disappearance of the Malaysia Airlines B777 — as a result of criticism in social media, with profuse apologies from management and the airline’s CEO, Tony Fernandes.

It is one thing to generally declare a commitment to safety, but quite another to assert that a crash is never going to happen. At worst, this sort of hyperbole can breed an attitude of complacency, which can take various forms:

• A shortage or even absence of contingency funds to address a loss, specifically:

– Money to support passengers next of kin, to include necessary transportation, lodging, meals and incidental expenses.

– Funds to support the inevitably costly investigation

– Monies to support safety adjustments deemed necessary even before the investigation is completed.

• A paucity of training, if any, for airline employees who are appointed to deal with the passengers next of kin, and for airline officials tasked with representing the carrier in various public forums.

• A deterioration in a “just culture”, where employees are encouraged to speak out — and are rewarded — for calling management’s attention to safety deficiencies.

• A ho-hum attitude regarding Safety Management Systems, which can be useful for teasing out latent hazards and correcting them.

In airline operations, complacency may be a huge threat to air safety. The abortive in-flight magazine article would have been far better focusing on pilots’ prudence, as in: if there’s any doubt, don’t. Proven, standardized procedures will reign. Good cockpit discipline and focus will be established for every flight. Sound airmanship and effective crew resource management will be practiced continually.

These sorts of assurances, if backed up with effective programs to ensure that they are practiced, are appropriate.

Indeed, the pilots of Flight QZ8501 may have reflected the natural caution of pilots facing severe convective weather. Shortly before the airplane disappeared, they requested to ground controllers that their assigned altitude of 32,000 feet be changed to 38,000 feet. They may have seen a safe opening in thunderstorms raging to 50,000 feet. Because of other “traffic” in the area, controllers denied their request.

One wonders about how much “traffic” potentially conflicted with the AirAsia pilots’ request. There were reportedly seven other aircraft on that route, which is hundreds of miles long. No doubt, “conflicting traffic” will be a subject of the inevitable investigative inquiry.

In the meantime, the AirAsia magazine article serves as an object lesson: an attitude of “it can’t happen to us” is bound to breed complacency and cruel events may undercut passengers’ confidence in safety.

With a fatal crash on his hands, Tony Fernandes is now using appropriate words. “My heart is filled with sadness for all the families involved in QZ8501,” he wrote in a Twitter message after the wreckage was found. “On behalf of AirAsia, my condolences to all.”

Words may not suffice. The issues presented above — regarding a “just culture”, realistic pilot training, maintenance that is up to snuff, etc. — bear thorough audit and corrective action. They apply not just to AirAsia, but any airline bent on avoiding condolences.

When we plop into our airliner seat and buckle the seat belt, we expect a rather boring journey to the destination, not a terrifying journey to mortal oblivion. Yet that is exactly what occurred on March 7, 2014, as 227 passengers boarded Malaysia Airlines flight MH 370 for a nighttime flight from Kuala Lumpur to Beijing.

Approximately 40 minutes after the 12:41 a.m. takeoff, the B777’s electronic transponders broadcasting the plane’s altitude and identity fell silent. Flying over water, beyond the range of ground-based radar, the airplane simply disappeared.

A massive international search was mounted. An impact crater on land was never found. Not a shred or scrap of debris floating was ever found along the track of ocean sites where fuel exhaustion would have marked the end of the plane’s flight.

Investigators surmised the airplane turned from its path toward Beijing and headed southwest, out into the Indian Ocean. Patrol planes with observers searched the wave tops for pieces of floating aluminum, maybe a bobbing seat cushion, bodies, or some other evidence of the plane’s catastrophic plummet into the water. Nothing.

The airplane’s aft-mounted black box featured a water-activated, battery-power pinger that broadcast a signal for about 30 days. Sensitive hydrophones would have picked up the telltale “pings” from the submerged wreckage. Nothing.

High-tech sonars were deployed from ships on the surface to probe the ocean depths. Robotic submersibles descended into the inky depths and bounced sound waves off the 14,700-ft deep ocean bottom, in the hopes that some of the return signals would reveal the location of the wreckage. The robotic submersibles went back and forth, probing with sonar in a pattern that covered a great deal of submerged acreage without duplicating the effort. Again, nothing.

Despite an effort involving 39 airplanes, 42 ships, technical support on land, and consuming an estimated $44 million, the international search proved to be one of false hopes, spurious signals and nil, zero, zilch, no evidence whatsoever of the Malaysian airliner’s fate.

The wreckage could be at the bottom of the Indian Ocean, elsewhere at sea, in the jungle, in the mountains — nobody knows.

Possible crash locations of MH370 based on fuel exhaustion

The difficulty, and the extraordinary lengths taken to narrow down where the wreckage might be, was outlined in an October 8th PBS ‘NOVA’ television documentary titled “Why Planes Vanish”. The documentary focused on the frustrating search for the remnants of Malaysian flight MH370:

“Twenty-six minutes after takeoff, at 1:07 AM local time, the airplane transmitted a text message via satellite to its operations center — that appeared to confirm MH370 was bound for Beijing — just like it always had before this night.”

“Three minutes after that call [a voice radio communication between the cockpit crew and Malaysian air traffic controllers], at 1:22 in the morning, both transponders on the Boeing 777 went silent. And so did the crew.”

“Air traffic controllers monitoring the frequency they were assigned in Ho Chi Minh City never heard from MH370″ ….

“In the handoff between control centers, MH 370 became nothing more than a silent primary radar blip. And when controllers finally tried to connect the dots, they couldn’t find the plane anywhere on their screens.”

“The plane had vanished.”

“As day broke, rescue crews immediately began searching for wreckage of a crash — in what seemed like a logical place: the South China Sea … where the plane was last seen by air traffic controllers on secondary radar. But there was nothing there.” ….

“The Inmarsat satellite transmissions to and from MH370 were relayed through a ground station in Perth, Australia, until 1:06 AM, when the plane send its last text message ty satellite to the airline’s operations center.” …

“Even more surprising, the log documents SIX MORE handshakes or pings between the ground station and the airliner, about one an hour. All of them occurred after the airplane had vanished … the airplane had continued to fly for at least SEVEN MORE HOURS.” ….

“[Investigators] determined MH370 sent its final handshake somewhere on these two arcs — to the north, all the way to Kazakhstan — or in a place that is as close to nowhere as anyplace can be — the southern Indian Ocean. Two million square miles in all.” ….

“According to this new data [derived from analysis of the doppler shirt from Inmarsat], flight MH 370 ended in the southern Indian Ocean.”

“But where on the southern arc?”

“Investigators estimated various speeds and altitudes that the missing plane might have flown.”

“Those factors, along with the amount of fuel and the winds aloft, are crucial in determining where the plane might be along the last handshake arc — where it is presumed the [fuel] tanks ran dry.” ….

“David Gallo is Director of Special Projects at the Woods Hole Oceanographic Institution. In May of 2011 he co-led the team that found the wreckage of Air France flight 447.” [The airplane crashed in the South Atlantic in 2009.]

“Air France had paid for an ACARS subscription that provided investigators much greater detail about what had happened, including position reports right to the end.” [Malaysian airlines only subscribed to a bare bones service.]

“[David Gallo on camera] With Air France we knew there was a plane, so that was important. There was debris being picked up just about a week after the plane hit the water, so there was no question that there was a plane somewhere in that neck of the woods.”

“[Narrator] They were able to narrow the search area to a circle 80 miles in diameter. And yet it still took two years of searching with autonomous underwater vehicles to find the wreckage.”

“[Gallo] It’s not like putting scuba gear on and just going to the bottom. You’re talking about going miles into the deep, into the darkness … It’s incredibly difficult terrain, with mountains as steep as any mountains we have on earth.”

A huge and remote area to search

“[Narrator] The area that Inmarsat has defined and searchers are pursuing in the hunt for MH370 is about the size of the state of West Virginia — five times greater that the Air France 447 search zone. It would take an autonomous underwater vehicle nearly a thousand days to cover an area that size.”

This frustrating mystery is not necessary.

The location of every airliner flying beyond the range of ground-based radars is readily available. A new system called the Automated Flight Information Reporting System, or AFIRS, does this. It monitors what the flight data recorder is seeing. AFIRS starts transmitting key data automatically when it senses trouble, alternatively at the command of the flight crew or airline dispatches at the ground headquarters.

Some smaller operators, such as Canada’s First Air, have already equipped their airplanes with AFIRS. First Air operates a mixed fleet of Hercules cargo planes, B767, B737, ATR-42 and ATR-72s in northern Canada, where oftentimes ground-based radars do not provide coverage.

The Chinese have mandated satellite communications for all aircraft. AFIRS has been installed on 30 Chinese-registered airliners to date with another 20 planes awaiting components that have already been paid for.
AFIRS was developed and is sold by a small Canadian company, FLYHT Aerospace Solutions Ltd. The system takes advantage of communication and navigation satellite already orbiting Earth. The company claims its technology is installed in 400 aircraft and helicopters. A company press release advertizes:

“For the first time in history, FLYHT has developed a technology to stream data off an aircraft in real-time. If an airplane encounters an emergency, FLYHT’s proven technology can automatically stream vital data, normally secured in the back box, and provide position information to designated sites on the ground in real-time. This technology opens new doors for increased awareness and safety in the industry.”

Not only the airplane’s final location, but data that also goes to the airplane’s black box. A two-fer, as it were, rendering the costly search for the black box unnecessary (although other aircraft components and human remains might be desired for retrieval).

Additionally, the aircraft’s operation can be monitored in real time, allowing for more efficient navigation en route to avoid bad weather, take advantage of favorable winds, and generally maximize fuel economy. Components evidencing behavior problems — maybe in need of repair or replacement — are identified in flight and maintenance personnel are alerted. The routine monitoring in real time is done continuously; AFIRS begins transmitting flight recorder data when activated.

AFIRS installed in the belly of an airliner

FLYHT President Matt Bradley maintains, “We have an internationally-recognized data streaming technology that is available to the industry now and are committed to advocating for its full implementation.”

Company representatives have been giving presentations to various aviation symposia around the globe.

AFIRS control panel in the cockpit

When the system is activated, a message is sent to key ground personnel, with the subject line featuring the attention-getting “Aircraft XXX Emergency.” Additional information includes:

The data streaming will continue for as long as the airline desires or until the airplane crashes.

AFIRS can be retrofitted onto existing aircraft for approximately $35,000 to $70,000, depending on aircraft type. The greater sum is for B777 wide body aircraft of the type that was operating as Malaysian Flight MH370. The system can also be installed during production of new aircraft.

The company claims that its technology realizes about $100,000 in cost savings per airplane annually. The savings accrue from reduced fuel consumption — benefitting from real-time reporting aloft rather than predicted winds and weather — and from reduced repair costs by having better information from in flight to preposition technicians and spare parts to minimize down time. Operators with AFIRS installed also benefit from reduced insurance rates.

The cost is cheap relative to, say, in-flight entertainment systems. These passenger entertainment systems can cost upwards of $1 million per airplane.

And AFIRS is a bargain compared to the $44 million spent in just the first month in the futile search for Malaysian Flight MH370.

Most importantly, a flight need not be a one-way journey to mortal oblivion. The less-than-emergency weather, maintenance and other information translates into more efficient and safer flights. When AFIRS is activated, authorities and family members at least will have critical flight data and a final location. In this respect, AFIRS promises to replace oblivion with certainty. This may be small comfort to the next-of-kin, but it is a great boon to investigators tasked with determining cause and recommending correctives — which imparts at least some meaning to the lives lost.

With AFIRS, the days of the flight recorder as a lost, unexamined “data morgue” could well be over.

Since 1970, more than 240 incidents involving jet engine malfunctions — some of them catastrophic — have been recorded. The event search was based on the key words, “shutdown, vibrate/vibration, bangs, loud, seized, contained, uncontained” or “bearings.” Oil and fuel systems issues, as well as bird strikes to engines, were discarded. In other words, only the most serious reports involving internal mechanical failure were considered. Suffice to say, problems run from the inlet to the hot section to the exhaust ducting.

The actual total is probably higher, but the Federal Aviation Administration (FAA) does not enforce any discipline regarding reporting. What reports do trickle in are the heart of “identified safety risks.” The risks, such as represented in the FAA’s incomplete data base, are well short of the actual frequency of incidents.

And this is just for engines.

The term “identified safety risks” is part and parcel of the FAA’s bureaucratic language used to transmit corrective actions — in the form of airworthiness directives — to the airlines. These directives mandate corrective action, usually on a very generous timeline so as not to inconvenience flight schedules.

From various and sundry airworthiness directives, “identified safety risks” encompass virtually every aspect of the airplane:

— Uncontained engine explosions that compromise continued safe flight. Not only loss of thrust, but shrapnel damage to hydraulic and electrical systems, leading to a cascading series of failures and cockpit crew confusion and overload.

— In-flight fires in inaccessible areas unprotected by fire suppression. Every square inch of public buildings is required to have fire detection and suppression; not so for the most crowded of public spaces, a modern jetliner.

— Electrical wire insulation that exceeded smoke, toxicity and flammability standards. The running of low-power circuits in the same bundles as high-power circuits aggravated the problem, as high-power arcing has led to overload of low power circuits, with resulting fire and explosions. The lack of separation and segregation standards for electrical circuits continues to this day; when electrical arcing occurs, the result is usually a sequence of cascading failures.

— Flammable thermal/acoustic insulation blankets installed throughout the fuselage for fire burn-through “protection.” The use of flammable insulation for burn-through protection remains a sick irony. Yet insulating material that resists the hottest fire is available, but continues to be unrecognized by the FAA and not used by the industry, either on newly-manufactured aircraft or retrofitted onto older aircraft during periodic overhauls.

— Electrical heater tapes, used throughout all airframes for freeze protection, with faults that led to an uncontainable fuselage insulation fire, raging just a few feet below the passenger cabin floor. Following two Air Canada fire investigations by the Transportation Safety Board (TSB) of Canada, Boeing said, “Between June 1985 and June 2002, operators of Boeing aircraft made a total of 67 reports to Boeing of heater ribbon failures where thermal degradation was evident.” Note the wording: “reports to Boeing.” The FAA was clueless regarding the extent of heater-tape induced conflagrations.

Damage to a B767 airliner from a faulty heater tape andthe resultant damage to insulation blankets

— Uncommanded rudder movements, or dangerous rudder deflections from one side to another, which contributed to at least three fatal crashes and an unknown number of incidents in flight from which a startled crew was able to retrieve the situation.

— Continued incidents of flight into freezing rain/freezing drizzle that aircraft are not certified to cope with, and for which the FAA has been egregiously lax in setting a standard. In-flight upsets from what is known as “supercooled liquid droplets” (SLD) continue to occur. In SLD, the water slaps onto the airfoil and instantly freezes. Unlike the larger Boeing and Airbus jets, with their much larger engines to supply hot air for anti-icing, the smaller regional jets have a lesser ability to resist icing conditions.

— Cockpit smoke impairing the pilots’ view of the instruments and of the outside world. The FAA and the National Transportation Safety Board own up to one such event, but a search of various databases yields at least six events.

These and other hazards persist because of “firewalls” that hinder recognition of safety hazards. There are many such firewalls, many of them self-imposed by regulatory bureaucrats, but here are five indicating the magnitude of the problem:

1. The Accident/Incident database maintained by the National Transportation Safety Board (NTSB) contains only 20% (or thereabouts) of these hazards, which are seen in such incident reports as the FAA’s Service Difficulty Report (SDR) database or counterpart agency reports.

2. The FAA’s Incident database is even more abysmally incomplete than the one maintained by the NTSB. For example, of some 67 uncontained engine explosions involving GE engines, the FAA Incident database captured just one. The gaping gaps in the FAA’s database makes one wonder: what is the purpose of “maintaining” such a record; to use a Swiss cheese metaphor, the holes are greater than the amount of cheese. For analytical purposes, the Incident database is utterly useless.

3. The SDR data itself is woefully incomplete. Although required by FAA regulations, some airlines comply, reporting gaps at other airlines range from 70% compliance to as little as 30%. The FAA does not enforce reporting compliance, so the SDR database is incomplete, and many reports that are submitted have missing data or “apparent causes”. Moreover, SDR’s are only required on incidents that occur in the air. Ground events are not part of the reporting mandate. The industry successfully lobbied to force the FAA to withdraw a proposal to include SDR-reportable events that occur while the airplane is on the tarmac. The SDR system is in need of a complete overhaul and stiff penalties for not reporting. Moreover, the reports must be systematically analyzed for trends by aircraft type and among airlines; the SDR database in its present form is scandalously incomplete and gathering dust as a “data morgue”, not rigorously analyzed to identify emerging trends.

4. Identified safety hazards remain hidden from public view with the manufacturers’ use of Service Bulletins (SB’s) and All Operator Alerts (AOL’s). FAA-issued airworthiness directives — available to the public — often refer to AOL’s and SB’s. In fact, AOL’s and SB’s often contain gritty details, which are referred to in only the vaguest terms in the airworthiness directives. The situation is analogous to reading about the efficacy, or lack thereof, of a medicine by reading the label on the bottle. The protocols, clinical trials and scientific studies remain behind lock and key. Suffice to say, published airworthiness directives, which reference these proprietary documents, make their associations to prior events and to safety trends simply impossible for members of the general public.

5. Certain FAA studies (on fuselage flaws, on uncontained engine explosions, on electrical wiring) also are not available to the public, thus obscuring trends and/or non-safety associations. The disclaimer on a study of the flammability of in-service materials is typical: “In general, data are proprietary to the applicant, and we cannot disclose those data to the public.” Here’s another regarding rotating engine parts: “The FAA proposes to designate the … data submitted to them to create the Rotor Manufacturing Induced Database (known as the ‘ROMAN database’) as protected from disclosure … under the Freedom of Information Act (5 USC552) and other laws. The FAA wants to encourage … suppliers that manufacture high energy rotating gas turbine engine components to voluntarily submit information into the ROMAN database.” Of course, voluntary reporting is likely to lead to as porous and incomplete information in ROMAN as in the “required” SDR database.

The question is why this state of affairs exists.

For one thing, costs to the industry are lower because AOLs and SBs, unless mentioned in FAA-issued airworthiness directives, require no mandatory action. Similarly, by not requiring reporting of all SDR data — occurrences both in the air and on the ground –the FAA lowers the cost to the industry of submitting reports.

To be sure, making available incomplete and selective data for public consumption gives a false impression of safety. The average John Q. Public is probably not aware of the appalling database incompleteness. Certainly the association between incidents involving injury and accidents involving deaths is obscured. Thorough SDR and Incident databases might reveal plenty of precursor problems leading to a fatal accident. Defining a fatal loss as an unfortunate “one time” occurrence lessens the role of industry in these losses, as it also lessens the role of the FAA’s sloppy certification system in such losses.

In sum, costs to the industry are minimized and facilitated by the use of partial, incomplete and limited public access to identified risks and related events.

By allowing this system of data truancy and industry-friendly policies, one has to ask: who is the FAA’s customer — the favored airlines and manufacturers, or the flying public, which falsely believes the feds really practice the doctrine of safety first.

About 25 minutes into JetBlue Flight 1416 from Long Beach, CA, to Austin, TX, the underwing engine on the right side of the Airbus A320 began to overheat. Within moments of the September 19 event, the crew decided to activate the fire extinguishing bottles mounted on the engine and banked for an immediate return to Long Beach.

Afterward, passenger Michelle Settergren shared her experience with the Long Beach Post newspaper:

“I had a window seat, so I was looking out the window. We were flying over downtown and then all of a sudden I started to smell something rank, just awful. The plane started to fill with smoke. Before you knew it, it was just gray and you couldn’t see anything. People were screaming and panicking. All of a sudden you just hear this ‘whoosh’ sound and whatever [jet] motor was running just stopped. I thought, hands down, I was going to die. The pilot got on the intercom and said we had engine failure and we were headed back to Long Beach. That’s it. There was no reassurance that we would be okay. The plane had a lot of turbulence, and people were praying, crying and screaming.”

Passenger Dean Delbaugh recalled, “The fumes were ridiculous. I can still kind of taste them in my mouth.”

Passenger Cynthia Manley said the engine failure was accompanied by a loud ‘boom’ and almost immediately smoke began filling the cabin. The smoke was thick and acidic. “I was breathing through my pillow,” she recounted.

The scene in the cabin of JetBlue Flight 1460

Actor Jackson Rathbone, travelling with his wife and infant son, said, “The oxygen masks did not deploy, but the brave stewardesses came around and manually deployed them.”

The flight attendants had the presence of mind to don portable emergency oxygen masks before working their way down the aisle to manually deploy the “little yellow cups” for the passengers from the overhead service compartments.

The airplane was rocking, Rathbone said, and before touchdown the order came over the public address system to “Brace!” This order was repeated by the flight attendants.

After the airplane came to a halt, the exits were thrown open, and the 147 occupants jumped down the slides.

A few passengers were treated for bumps and bruises. All were bussed to a room at the Long Beach airport where they filled out forms. They were given freebie snacks. Rathbone described the gesture as ” ‘Sorry the engine blew up in mid-flight’ bag of chips.”

While there were no serious injuries, questions abound:

Had the engine demonstrated temperature fluctuations in earlier flights? That day? That week?

What did the engine monitoring system record? Were temperature anomalies being watched by JetBlue maintenance personnel? If so, were they just noting the deviations, or had they already decided to conduct a detailed maintenance inspection of the engine?

If JetBlue maintenance was in the dark about the impending engine failure, what good are state-of-the-art engine health and monitoring programs?

Was the engine shut down before the fire extinguishers were activated? Cabin air is provided by “bleed” air from the engine compressor. Most compressed air is sent straight to the “hot” section of the engine to be mixed with fuel and produce thrust, but some air is diverted before the “hot” section to provide cabin air. Was the foul odor smelled by passengers the telltale of an engine fire, or was part or all of the smell resulting from the fire extinguishing agent?

If the engine was shut down, how did contaminated bleed air get into the cabin? Is it because the engine is still free-wheeling even when shut off?

Most interesting of all, why did some or all of the passengers emergency oxygen masks fail to deploy, requiring flight attendants to work their way down the smoke-filled aisle to manually deploy them? These masks are normally deployed by an electrical switch in the cockpit. Had this switch been activated? If not, was there a breakdown of communication in the cockpit? If the switch had been triggered but the masks still didn’t deploy, this fact would point to an electrical failure. Is the electricity for mask deployment provided solely by the affected engine? If so, where is electrical redundancy.

Lots of issues. No answers likely to come from either JetBlue or Airbus. The National Transportation Safety Board should investigate. The Board is not doing so.

Cockpit automation is a source of suspicion, even mistrust, among many pilots. Cockpit systems tend to be overly complicated and their functioning inscrutable. A technical memorandum on “Cognitive Engineering … of the Vertical Navigation (VNAV) Function”, a central component of the drive toward increasing automation, by a team of researchers found:

“The typical VNAV function automatically chooses the active altitude target from a possible list of sixteen, and chooses the active speed target from a possible list of twenty-six … [and] Pilots are ‘surprised’ by the behavior of the VNAV function when the aircraft trajectory or the thrust indicators do not match their expectations.”

The researchers concluded: “VNAV function behavior is not intuitive in the descent and approach phase of the flight plan.”

This problem was amply demonstrated in the July 2013 crash of Asiana Airlines Flight 214 at San Francisco. The National Transportation Safety Board (NTSB) concluded, “The crew over-relied on automated systems without fully understanding how they interacted.”

Thousands of hours of flying experience, hundreds of hours in classrooms and simulators, yet the crew was unaware that the engines were in idle thrust during the critical landing phase. Automation did not help to prevent this accident — rather, it contributed to the catastrophe.

During the course of its exhaustive investigation into the crash, then-NTSB Chairman Deborah Hersman observed that “mode confusion or mode awareness is an issue … Because it’s not just in this accident … It’s over and over again.”

She asked Stephen Boyd, of the FAA’s transport aircraft directorate, a basic question, “What’s the purpose of automation?”

Boyd: “Are you asking from a regulatory perspective?”

Hersman: “I’m asking for a one-sentence answer.”

Boyd: “Madam Chairman, it’s very difficult to answer because there is such a wide range of what automation means … it’s hard to say what the purpose is, and I would have to say it depends on what you’re automating.”

Hersman: “Okay. So what’s the purpose of autothrottles? Is it to reduce workload? Is it to increase safety? I mean, I’m just looking for a really big picture understanding of why you would implement that rather than manually fly all the time, be responsible for throttles all the time?”

Boyd: “Well, I would say that’s fundamentally a question for the designers to answer.”

Captain John Cashman, formerly Boeing’s chief pilot for the B777 program, did little better, saying the customer wanted automation to “improve the efficiency of aircraft.”

Unsaid in these unsatisfying exchanges is that automation has been increased because of the gains in calculating capability and the reduced size and power demands of computers. Automation has increased because the technology enabled it.

Cockpit automation has increased because technology enabled it,not because it met the pilots’ needs

Hersman never did get an answer to her basic question.

Let us try a basic definition:

“Automation is applied to relieve the pilots’ routine workload while increasing their control of the airplane and their awareness of the airplane’s safe and unsafe location and path in three-dimensional airspace; automation calls to the crew’s attention any deviation from normal operating parameters with plain and compelling language, all while facilitating the pilots’ ‘heads-up’ view out the windscreen.”

Or, the short version:

“To increase pilots’ control of the aircraft and their awareness of systems functioning.”

In other words, attending to the task of entering values on a key pad, to the detriment of looking through the windscreen, would be a negative according to this definition. So would engines at idle thrust in the moments before touchdown during landing. So would attempted takeoff without deployment of trailing edge flaps. So would all fuel dribbling out through a leaky pipeline, leading to an unusually low fuel state too soon in the flight. There is a long list of problems where existing automation has failed — either designers did not account for a seemingly improbable failure (technological hubris), or explicit alerts to the crew were not provided (design complacency).

Under the definition above, sixteen altitude targets, twenty-six speed targets, and the computer selecting between this array — to the frequent mystification of pilots — would be impermissible. The automatic selection of target altitudes and speed is not in accordance with strengthening the crew’s control of the airplane.

Increasing the automation because it was possible to do so has only served to increase pilot surprise. According to the technical memorandum referred to at the outset of this discussion, more than half of the pilots surveyed reported being surprised by VNAV behavior (e.g., unexplained altitude errors, unpredictable speed targets during approach). One group of pilots reported the VNAV function as “the most disliked feature of automated cockpit systems.”

Hersman asked the salient question — one that neither the FAA nor designers of modern jetliners have asked themselves. Yet inscrutable technology, its secrets buried in lines of computer code, is piled on top of existing protocols that are, at best, only partially understood by pilots.

Landing a modern jetliner requires the full attention and coordination of the pilots. The speed of cruise flight — approximately 550 miles per hour — must be bled off for landing. The airplane must be guided down an invisible glide slope so the tires skim the end of the runway. While descending, the airplane must be configured for landing; trailing edge flaps and leading edge slats deployed, engine power throttled back for a stable descent, communications must be maintained with the airport tower and with the flight attendants in the cabin, and a lookout must be maintained for other aircraft in the vicinity.

While the pilot handling the flight controls is seeking to maintain the airplane on the descending glide path, any automation that maintains the airplane’s reduced speed certainly frees his mind for the task of keeping the airplane along the -3° path to the runway.

If the pilot mistakenly believes the automated system is maintaining the correct speed for descent, when it is not, the lack of thrust can mean premature contact with the ground — and usually disaster.

The subtle failure of speed protection during descent is a classic “pilot trap”, one that caught the captain of Asiana Airlines Flight 214 on July 6, 2013. During a daylight landing in clear weather at San Francisco, with 291 passengers aboard the B777, the airplane lost speed, struck the seawall at the end of runway 28L, and cart wheeled to a spot about 2,000 feet further down, completing a 330° turn before skidding to a stop. Three passengers died and 199 were transported to hospitals with injuries.

The airplane was destroyed, broken apart and charred in a goo of firefighting foam.

The wreckage of Asiana Flight 214

A fiery, deadly fiasco resulting from decreasing airspeed that was not sensed by any of the supposedly professional pilots in the cockpit (three captains and one first officer, some training and evaluation being conducted on the flight from South Korea).

The National Transportation Safety Board (NTSB) investigated. A year after the crash, acting NTSB Chairman Christopher Hart glumly observed, “In this accident, the flight crew over-relied on automated systems without fully understanding how they interacted.”

Whether the automatic speed control was “On” or “Off” was not clear to the crew. The handling pilot presumably thought it was “On” when in fact the equivalent of speed control in an automobile had quietly, without announcing this fact, snapped “Off”.

The NTSB recommended that the Federal Aviation Administration (FAA) review the design of the speed protection systems on the B777:

“Convene a special certification design review of how the Boeing 777 automatic flight control system controls airspeed and use the results of that evaluation to develop guidance that will help manufacturers to improve the intuitiveness of existing and future interfaces between flight crews and autoflight systems.”

Classic toothless bureaucratese. Preferable wording might be:

“Redesign B777 and all other aircraft model autoflight systems to ensure that their controls of airspeed and altitude are obvious and that their ‘On’ and ‘Off’ status is unambiguous to the crew, and that changes in status are both aurally and visually apparent in the cockpit such that acknowledgement or rejection is required by crew action. Require all autoflight systems not meeting this standard to be upgraded in aircraft within 24 months of this recommendation, with associated documentation and recommended flight training to be issued to the airlines. Ensure FAA approval of all such changes and issue of FAA-compliance directives to ensure mandatory implementation by airplane manufacturers and the airlines.”

Let us not be wishy-washy about the flight crew’s real-time knowledge about whether speed is automatically being maintained, or not.

The problem predates the Asiana crash at San Francisco. At least one other crash and one incident involving other Boeing aircraft models can be attributed to mode confusion — or ignorance — according to the NTSB.

Captain Kim Je Youl, a B777 instructor pilot at Asiana Airlines, remarked in an interview with NTSB investigators that if the Flight Level Change (“FLCH”) mode is selected during descent, the autothrottle will move to the HOLD mode, which does not support airspeed protection. Rather, the engines will spool down to idle power. From an English translation of his statement:

“During an approach to Seattle … the airspeed was falling close to the target airspeed but the autothrottle was in an idle state and did not respond … when the airspeed was 10 knots below the target airspeed, I turned off the autothrottle and manually pushed the throttle and had an uneventful landing. However, I was surprised that the autothrottle did not maintain the selected target airspeed.

“After the flight, I examined the ‘Flight Control’ section of the Boeing Flight Crew Operations Manual (‘FCOM’) and was eventually able to find, with some difficulty, a single sentence ‘note’ item on circumstances in which the autothrottle may not respond. I still felt this ‘note’ was insufficient to explain what I had just experienced. Therefore, I did a further study of the ‘Autopilot’ section of the Boeing FCOM and realized that in the circumstances I described above the autothrottle can be in a dormant state and the autothrottle will not function even if the target airspeed is reached. In my personal opinion, this is very important information that should be highlighted to pilots as a ‘warning’ item and not merely a ‘note’ item in the Boeing FCOM.

“In light of my personal experience, I made it a point to teach this aspect of the Boeing 777’s authrottle logic in ground school.”

No aural alarm. Just a green “Hold” light on the instrument panel (not yellow or red) — green signifying everything is normal. The term “Hold” is a misnomer; not holding thrust to maintain the target airspeed, but holding at idle power. Unless this condition is caught, the airplane will descent below the glidepath.

“I attended [a] course on ‘Performance’ that was taught by Captain Kwon Young Sik, a Boeing 777 captain and flight instructor at Asiana. Captain Kwon stressed that during approach … he strongly cautioned against using FLCH in a situation where a fast descent was required, using the visual approach to runway 28L at [San Francisco] as an example.”

One would think that for an airplane in flight, any automatic command to reduce thrust to idle power would be signified by a yellow light on the instrument panel illuminating the word ‘IDLE’.

Note the illuminated green letters, with HOLD supposed to indicate idle power;for the unwary, a ‘pilot trap’ of the first order

A pilot who does not remember his ground school instruction, or who is otherwise distracted or busy during the descent to the runway, might not recognize that the airplane’s computer has reduced the two engines’ power to idle. Basically, nil power when more power is needed.

This deadly quirk was discussed at a December 2013 NTSB hearing on the Asiana crash. Indeed, mode confusion, the design of the authrottle system, and how the crew is supposed to know “HOLD” means idle power consumed a good portion of the discussion between the five Presidentially-appointed board members, FAA, Boeing and Asiana witnesses called to testify.

This particular autothrottle system is found on hundreds of Boeing aircraft; not just on the B777. The same arrangement is a feature of the B747, the B757 and the B767. The exact same autothrottle system is found on Boeing’s brand new B787. In other words, the system is widely used in the existing fleet and will be in use for the nest 50 years as the B787 enters widespread service.

The FAA’s Stephen Boyd testified about the absence of a “wake-up” function on the autothrottle, revealed during the course of certification flight testing, done as part of the process to gain FAA approval of the B787 for use by the airlines:

“We were conducting a flight test and there was a flight level change initiated and [it] was interrupted by another event … Our pilot … was monitoring airspeed and noticed airspeed was decaying, and then as part of his test pilot functions, allowed the airspeed to decay further to see what would happen

“And our test pilot was expecting … the autothrottle would wake up … not realizing that the autothrottle was on, the autothrottle would not wake up.

“In the process of doing the evaluation [of the autothrottle design software], working with Boeing in this one, our FAA pilot determined that the fact that the autothrottle did not wake up was not a safety issue, nor was it a regulatory compliance [issue] …he worked with Boeing to include additional information in the flight manual to explain that the autothrottle on the 787 would not wake up from an autothrottle hold.”

So, buried deep in the B787 flight manual is the same quiet but revealing caveat — “additional information” according to the FAA’s obviously satisfied Boyd — that Captain Kim found hard-to-find and woefully deficient in the B777 manual.

Captain Kim was present at the NTSB hearing, representing Asiana Airlines. He noted that the European Aviation Safety Agency (EASA) wrote during B787 certification that the wake-up function was not operative and did not protect the aircraft.

“EASA noted the inconsistency in automation behavior has been in the past a strong contributor to aviation accidents and concluded that Boeing would enhance the safety of the aircraft by avoiding exceptions in the autothrottle wake-up mode,” he point out.

“This EASA recommendation came up during the 787 certification in a similar manner as the FAA response item that we discussed earlier. This [EASA concern] came out as a recommendation, which means that Boeing is not required to respond to it and it is not a certification issue.”

Thus, the FAA determined the autothrottle’s lack of wake-up was not a safety issue, and the European concern about the same issue did not “require” a response. By such careful parsing of words, the very same autothrottle deficiencies contributing to the crash of Asiana Flight 214 were embedded in the new B787.

Board member Robert Sumwalt asked Boeing’s Darren Gulbranson, head of the company’s simulators, “Where does it caution that if you’re in a flight level change mode and the autothrust is in hold, that they (sic) will not wake up as we’ve just described here?”

Gulbranson: “I believe it’s in Chapter 4 of the Flight Crew Operations Manual, a note that says in flight level changes, the mode — that the throttle’s in hold, it will not wake up.”

Sumwalt was not impressed that this key behavior of the system was buried in the fine print. “See? If you know all of those nuances, it’s pretty clear, but here we are training people and we’re instilling in them that the autothrottle is going to wake up.”

Needless to say, the NTSB hearing was a startling revelation that when the authrottle is in HOLD mode it will not wake up and provide speed protection. One is left wondering what other foibles and quirks lurk in the highly automated cockpits of today’s, and tomorrow’s, jets, covered by notes in the manuals but not fixed?

In its listing of safety concerns emanating from the Asiana Flight 214 crash, The NTSB listed “reduced design complexity” to “help reduce the type of error made by the PF [pilot flying].”

The NTSB concluded:

“If the autothrottle engagement function (wake-up), or a system with similar functionality, had been available during the final approach, it likely would have activated and increased power about 20 seconds before impact, which may have prevented the accident.”

The chaotic cabin of the Asiana B777 following the crash

Twenty seconds of added thrust — time that probably would have spelled the difference between a routine landing and fearful passengers scrambling to evacuate a wrecked airliner.

Passenger arguments over reclining seat backs have resulted in at least three unplanned landings recently. Tempers were flaring, and the pilots deemed it prudent to follow the admonition of one aggravated passenger cramped behind a reclined seat back: “Put this airplane down, NOW!”

The number of reclining seat back disputes resolved by diplomatic flight attendants remains unknown but is probably a lot.

Economy class seats have been cramped for years. Anyone sitting in the middle seat knows the subtle disputes over the arm rests, which must be shared with passengers in the adjoining window and aisle seats. In the case of seat width, the passengers in the window and aisle seats have the option of scootching slightly outwards, either toward the cabin wall or into the aisle, giving the hapless middle seat passenger use of at least one arm rest.

This flexibility does not pertain to the space measured from the hinge point of the seat in front to the hinge point of the seat in back — what is known as seat pitch. When the forward seat is reclined fully, the passenger behind is wedged in; the feeling can be positively claustrophobic. It should not surprise that occupants crammed like sardines are turning on each other.

As a passenger commented:

“In most economy class seats, if the person in front of me reclines, I cannot use my fold down tray, cannot use my computer, cannot read a book or newspaper. The reclined seat takes up all the room in front of my. This is intolerable for more than an hour or so.”

On one of the three flights that landed prematurely, a passenger had locked the seat in front of him in the fully upright position, using a device known as a Knee Defender. The irate passenger whose seat was blocked from reclining threw a cup of water in the face of the passenger using the Knee Defender when he refused to remove the device.

The Knee Defender prevents the seat back in frontfrom being reclined into the space ahead of onewhen the tray table is deployed

The $22 Knee Defender consists of two plastic wedges that, when affixed at the base of the seat back in front, prevents it from reclining. According to the website where Knee Defender can be ordered:

“It helps you defend the space you need when confronted by a faceless, determined seat recliner who doesn’t care how long your legs are or about anything else that might be ‘back there’.

“For those of use who have to squeeze ourselves into the limited airplane legroom space of a coach seat offered by many airlines, a seat in front us that is poised to recline is a collision waiting to happen — with our knees serving as bumpers.

“Knee Defender™ to the rescue.”

Of course, passengers can always upgrade to Economy Plus (or variants of this moniker), in which they are afforded a greater distance between seat rows — but the seat itself remains the same.

In many cases, the Economy Plus seats are in the exit rows for emergency evacuation out the removable window panel. The extra space between seats is required by the Federal Aviation Administration (FAA) so that all passengers — not just those in that row — can speedily evacuate the airplane.

On these rows, the seat backs in front do not recline, to prevent any inhibition to quick evacuation.

The obvious solution to recliner rage is to make all rows the equivalent of exit rows — more distance between rows of seats and locked recliners. This stratagem would doubtless be unacceptable to the airlines, which would lose revenue-generating seats, and to passengers who want to recline, albeit courteously.

But this recourse does not address the overall problem of seat size. Airline seats are designed for the 95th percentile of men. However, people are getting bigger, and it is estimated that about 1 in 10 passengers today find the seats too small for them. With many economy class seats measuring a scant 17 to 18 inches across, many passengers find them too snug. The widest part of the body is in the shoulders, which is why many passengers wind up shoving for arm rest space.

The FAA should initiate a study of population size to resize, as it were, the minimum seat size and spacing, both fore-and-aft and left-to-right. FlyersRights, a passenger advocacy group, argues that there is a safety dimension not being addressed in the current mania to cram more seats into airliners and fill them completely for each flight:

“We sounded the alarm on substandard seat pitch due to airlines being allowed to insert extra rows to increase profits, resulting in passengers unable to brace themselves according to the aircraft safety card. Passengers also cannot exit a plane in 90 seconds during an emergency as required by the FAA, due to lack of egress in seat rows.

“What is needed is the FAA stepping in and setting a minimum distance between airline seats…”

Assuming such an FAA study resulted in larger seats and increased pitch, the result might not be increased comfort for the passengers. The new standard would have to be embedded in regulation. Any proposed regulation would have to be published for public comment. Airline opposition to any reduction in seats would doubtless be fiercely opposed.

The sad case of child safety seats on airlines is instructive. The FAA proposed mandating them — which would have ended the unsafe practice of infants in parents’ laps. The public response was overwhelmingly favorable. Parents, medical and safety experts all weighed in favorably. Airlines were opposed. The FAA proposal died.

Until the FAA is no longer subject to the dictates of the airline industry, expect no relief on cramped seating.

How might relief be accomplished? Have Congress enact a law requiring the FAA to study seat size and pitch from a safety and comfort standpoint, and to require its findings to be implemented by the airlines within ten years. Nothing less will relieve the present cramped and disputatious economy class seating conditions.

The Federal Aviation Administration (FAA) proposed a $12 million fine July 28 against Southwest Airlines for sloppy repairs to fuselages on its B737 jets. What appears as significant regulatory action appears distinctly as another tardy and weak effort to assure the safety of the flying public.

“The FAA views maintenance very seriously, and it will not hesitate to take action against companies that fail to follow regulations,” vowed FAA Administrator Michael Huerta.

Tough talk and a proposed fine that are both years late, when timely FAA oversight might well have made a difference. The whole announcement of this “civil penalty” against the airline appears scripted for public consumption.

The FAA says it seeks financial disciplinary action based on Southwest’s maintenance lapses from 2006 to 2009. Note that it is now 2014, five years after the closing window of alleged shortcomings. Financial penalties and mandated procedural and personnel changes would have made eminent sense in 2010; now, years after the fact, the FAA’s belated action is too late to impact procedures, or to make a meaningful imprint on the minds of those responsible.

Not to mention that had the FAA acted in a timely manner, the sudden 60-inch tear in the upper fuselage of a Southwest jet cruising at 34,000 feet in April 2011, forcing an emergency landing of the planeload of terrified passengers, might not have occurred.

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<a href=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/hole.jpg”><img class=”size-medium wp-image-2869 ” alt=”Hole blown in the aluminum structure of a Southwest jet when the lap joint failed ” src=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/hole-300×169.jpg” width=”300″ height=”169″ /></a> Hole blown in the aluminum structure of a Southwest jet when the lap joint failed

The FAA says that proper procedures were not taken when fuselage skins were repaired on Southwest’s jets. Specifically, that the airplanes were not placed on jacks to stabilize them for the repair work; sealant was applied between overlapping skin panels, but not all rivet holes were affixed with fasteners within the time allowed to assure a good bond and corrosion-free service.

The repairs, according to the FAA, were not performed in accordance with airworthiness directives (ADs). However, the FAA adds that it approved the repairs after the airline provided proper documentation. So, did the FAA subsequently okay the repairs even though they were made on airplanes that had not been first placed on jacks, and rivets were applied in the time allowed after sealant was applied? And it took five years for the FAA to determine that the paperwork was sloppy and to issue a proposed fine? Where were the FAA’s on-site inspectors when the repairs were first made?

Lots of questions. No answers.

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<a href=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/faa.jpg”><img class=”size-full wp-image-2870 ” alt=”Looks official, but the globe should be a pillow until the agency acts like a rigorous regulator ” src=”http://nolan-law.com/nlg2014/wp-content/uploads/2014/08/faa.jpg” width=”261″ height=”192″ /></a> Looks official, but the globe should be a pillow<br />until the agency acts like a rigorous regulator

Now begins a period of negotiation between the FAA and Southwest Airlines, in which the likely outcome is a dramatic reduction in the fine.

A fine against American Airlines for $162 million was subsequently whittled down to $25 million — an 85% reduction.

For Southwest’s lawyers, this 2013 precedent will surely provide a stimulus for vigorous argument.

Previous maintenance lapses do not seem to result in increased fines. From 2005 to 2013 the FAA levied $1,155,000 in proposed penalties against various airlines for maintenance lapses. Three forfeitures were announced against Southwest, the largest being $45,000. Eight penalties were proposed against Alaska Airlines, one of which was a measly $5,500. You would think that with eight proposed penalties from 2006-2007 there would be a special inspection of the Alaska’s maintenance practices across-the-board, especially when the airline came within a hairsbreadth of losing its FAA-issued operating certificate after the fatal crash in 2000, a direct result of maintenance deficiencies.

Each proposed penalty is viewed in isolation, not as part of a pattern warranting scrutiny as to the root causes of the maintenance violations. The flying public is unaware of these penalties; that is, unless the FAA decides to make a show of toughness.

The penalties would put a crimp in a household budget. For a corporation, they are not even as irritating as a minor hangnail.

Southwest earned a net profit in 2013 of $804 million. The proposed penalty of $12 million represents a mere 1.5% of 2013 profits. Negotiated down by 85% — as in the American Airlines case — will result in a penalty of just $1.8 million, or about two-tenths of one percent of Southwest’s 2013 profits.

2. A forfeiture should be meaningful. Say, 5% of annual profits for each instance, times the number of airplanes affected.

3. The FAA should not be in the business of negotiating with the airlines what they will actually pay. The FAA is the regulator; if irregularities have been documented by the FAA’s principal maintenance inspector, the airline should be fighting to retain its operating certificate, not the amount of a reduced fine.

4. If the FAA were serious about safety and accountability, it would annually publish for the flying public each airline’s ranking using a star system similar to that used for automobile crashworthiness. For aviation, a three-star rating system would apply:

One star (¶): the airline meets FAA standards. If the airline is not meeting these admittedly minimum regulations, it should not be operating.

Two stars (¶¶): the airline more than meets FAA standards and has in place some voluntary safety programs.

Three stars (¶¶¶): all of the above, plus the airline has a pro-active safety culture with a non-punitive program to encourage employee reporting of deficiencies.

A civil penalty of less than $1 million would knock down an airline’s star rating by one star for six months. If already at the minimum one-star level, the airline would have its rating reduced to just a half-star. For penalties equal or greater than $1 million, the airline would be penalized by one star for a full year,

In pretty short order, we would see airlines scrambling to achieve a three-star rating and to make this ranking a feature of advertising, annual reports, and even on the corporate letterhead. Imagine a little logo on a proud airline’s web site and in its advertising: the great seal of the FAA emblazoned with three gold stars and a motto like, “Top ranking for safety, for five years and still improving.”

The flying public would have a ready measure; the airlines would have a meaningful incentive to avoid fines.

Given the location and geo-political implications of the occurrence involving Malaysia Airlines Flight MH 17, speculation as to its cause will likely run rampant for years and remain vehemently contested even after a governmental probable cause is determined.

Yet regardless of the ultimate cause of the occurrence, the rights of the passenger’s beneficiaries to recover compensation for damages from Malaysia Airlines will be governed by the Montreal Convention of 1999. Even out-of-court, private settlements between the air carrier and passengers’ beneficiaries would be predicated on the provisions of the Montreal Convention.

Article 17(1) of the Convention provides:

“The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”

Beyond this threshold requirement, Article 21 of the Convention establishes a two-tiered scheme of liability for compensation. First, the air carrier is strictly liability up to an amount of 100,000 Special Drawing Rights (SDRs), which had the equivalent of US $154,166 on July 17, 2014. Thereafter, there is presumptive liability to an unlimited amount unless the air carrier proves that:

“(a) Such damage was not due to the negligence or other wrongful act or omission of the carrier or its servants or agents; or (b) Such damage was solely due to the negligence or other wrongful act or omission of a third party.”

If an air carrier and the passenger’s beneficiaries are unable to reach an agreement on the amount of compensation for damages, a court action must be brought within the two years prescribed under Article 35.

The location or jurisdiction for the bringing of such a court action is limited under Article 33 of the Convention to one of five places:

1. a court in the country where the air carrier maintains its domicile;

2. a court in the country where the air carrier maintains its principal place of business;

3. a court in the country where the air carrier has a place of business through which the contract has been made (usually considered the place the ticket was purchased);

4. a court in the country of the place of destination; or

5. a court in the country in which the passenger had his or her principal and permanent residence, so long as the air carrier or its code sharing partner does business there.

Many of these five potential jurisdictions are often the same in a given action. However, to the extent that they are different, it is the option of the plaintiff as to which of the five jurisdictions the action is to be brought.

Once an action is brought, the Montreal Convention continues to govern the substantive legal remedies of the parties, but under Article 33(4), “questions of procedure shall be governed by the law of the court seised of the case.” Such applicable procedural law may well contain limitations of the nature and amount of the recoverable damages. This must be appreciated and understood before settlement or proceeding with an action in any court.